In a disappointing but not altogether unsurprising move, the communications regulator, the Independent Communications Authority of South Africa (Icasa) has leapt to the defence of the censorious state broadcaster, the South African Broadcasting Corporation (SABC) and confirmed the de-facto ban of two opposition political advertisements for the national elections.
Icasa is tasked with ensuring fairness of coverage for political parties during the electoral period. However, the fact that they caved into the SABC's wishes and rejected two adverts, by the Economic Freedom Fighters (EFF) and the Democratic Alliance (DA), smacks of a conservativeness that undermines free speech during elections, as well as deference to political authority.
The basis for Icasa's rulings is their regulation on election broadcasting. According to the regulation, party election broadcasts and party advertisements must not contain any material '... that is calculated... to provoke or incite any unlawful, illegal or criminal acts, or that may be perceived as condoning or lending support to any such act'.
This provision is overbroad. The Constitution does not extend protection of freedom of expression to a much narrower range of speech, namely to incitement to imminent violence.
In other words, the speech needs to call for violence actively and the speaker should have this intention. Also, there needs to be a strong likelihood of violence occurring from the speech, and the speaker needs to know that. This means that the context in which the speech is made is all-important.
Advocacy, on the other hand, has a much broader intention than incitement, as it involves public support for a particular cause and not a specific call to action.
As a result, this form of speech generally receives Constitutional protection. This extends to advocacy which may lead to property destruction and even violence, such as the overthrow of the state, as the call is broad and unspecific enough to fall short of incitement. The only advocacy that is not Constitutionally protected is hate speech.
In the case of the DA advert, the SABC's argument that a photograph showing the police shooting rubber bullets at a protestor constituted incitement to violence against the police was nonsensical, and Icasa should be ashamed of itself for having upheld this decision after a South African Police Service (SAPS) intervention. The fact that this photograph has already been published and has not resulted in violence, is the clearest refutation of their argument.
The EFF case is much more difficult, as their advertisement included a promise to remove e-tolls physically. However, arguably this statement is advocacy, not incitement.
The party did not call for a specific group of people to destroy the gantries, knowing full well that those people had the capability of removing the gantries. Even if incitement could be proved, the statement lacks imminence, given the extremely unlikely possibility that people would rush out in their numbers and pull down e-toll gantries (although, undoubtedly, many would dearly love to).
Icasa's regulations, and their recent application, demonstrate that the broadcasting framework is not really designed to facilitate electoral competition: if it was, then it would be much more accommodative of the kind of 'cut and thrust' speech that is usually the stuff of competitive elections.
The speed and efficiency with which Icasa moved to shield the SABC and the ANC can be contrasted with the weakness of the Independent Electoral Commission (IEC) in dealing with the growing problem of political intimidation in pre-election periods.
Intimidation escalated when the Congress of the People (Cope) was formed before the 2009 elections, and the expansion of the DA also amplified the problem of intolerance. There are signs that the problem is growing as the ANC experiences more electoral competition.
Research conducted by David Bruce for the Community Agency for Social Enquiry (CASE) has shown how the IEC has failed to develop mechanisms to respond to pre-election intimidation.
Rather, the Commission has confined its role mainly to ensuring voting goes off without a hitch on election day, and has generally done so very efficiently.
However, it has paid insufficient attention to the deeper preconditions for political participation in elections. It has not responded decisively enough to a range of coercive practices, especially by the ANC, which according to Bruce, was the most at fault.
Bruce's research also points to the increasingly transactional nature of voting in South Africa, where votes become a transaction currency: a means of buying goods and services from a political elite, and not just an expression of confidence in the inherent capabilities of a particular party or leader.
While elections have been commodified in many parts of the world, countries with high levels of economic insecurity are particularly vulnerable to transactional elections.
Bruce recorded cases where ANC members told voters that they will lose their pensions, grants or other state benefits if they vote for opposition parties, creating fear of economic instability. At times these statements tipped over into threats of withholding these benefits.
ANC members and government officials have been accused of handing out economic inducements such as food parcels to encourage people to vote ANC, which smacks of 'vote buying'. Threats and inducements of this nature increase the risks of voting for a party that is not in power, and pragmatic voters will think twice before doing so, even if their hearts tell them to.
These are not the only signs of transactional logic shaping elections. Recently, the EFF challenged the Constitutionality of the electoral deposit, which all parties are required to pay if they want to contest elections. The deposit is refundable if a minimum number of votes are obtained.
This requirement exists to ensure that the parties that are serious about contesting the elections are weeded out from the ones that aren't.
This requirement is questionable as it places a class bar on participation by making participation subject to money, and equates political power with financial power.
As a means of testing seriousness, is also irrational as it equates seriousness with financial means, which means frivolous but rich people can register their parties, while serious but poor people can't.
Even if the party gains the minimum levels of support at the polls, and its deposit is refunded after the elections, the money could have been put to better use, such as for campaigning.
This means that start-up parties are particularly disadvantaged, as established parties are able to raise funds more easily than start-ups.
Aspirant parties could be required to collect signatures to prove seriousness, which will place an administrative burden on the IEC to check for forgeries, but spot checks could be conducted to reduce the burden.
South Africa has often rushed to pat itself on the back for yet another free and fair election, and the 2014 national elections is unlikely to be an exception to the rule.
The country has done well to ensure that elections go off peacefully, and the results are accepted by parties and the electorate.
But the robustness of the system has not really been tested, as levels of electoral competition have been low. But this is changing, and as a result, cracks are emerging, especially in the Constitutional institutions that are tasked with ensuring free and fair elections.
Because elections have gone off largely without incident, too little time has been spent analysing systemic weaknesses in the country's electoral landscape, which has been skewed towards the ruling party.
Because of the increasing conflation of money and politics, those parties with financial means are the most likely to become the dominant competitors, in spite of the fact that the poor hold the most voting power numerically.
As working class movements and parties become more visible in time to come, these inequities will become clearer, which should hopefully prompt a much more substantial assessment of what constitutes a free and fair election, and whether elections really are an expression of the will of the people.
Professor Duncan is Highway Africa Chair of Media and Information Society, School of Journalism and Media Studies at Rhodes University.
Read more articles by Jane Duncan.